My current status is H-1B. I want to resign and change the status to H4. However, I already filed the I-526 application about six months ago, and received the receipt number. There are questions on the I-539 application such as "Has an immigrant petition ever been filed for you?" Considering this, how will my I-526 application affect my I-539 approval, and vice versa?

Answers

It is always advisable to state accurately what has been filed and your intent in applying for residency status. Applying for an extension of H status should not affect the I-526 process or vice versa. The I-526 petition is not the same, as you are applying for permanent residency status. The H status has dual intent which means you can be pursuing both a non-immigrant visa and an EB-5 immigrant status.

Hi. It should not be a problem. H-1Bs & H-4s can have an immigrant petition filed without any negative effect, since an H visa holder is permitted to have "dual intent" to maintain temporary status and later get permanent resident status.

You state that you wish to be H-4, which means your spouse is H-1B? Please note that H-1B is a dual intent non-immigrant visa, which allows you to express your immigrant intent and be okay to receive. I would suggest that you work with your immigration attorney and have him/her explain how you were in H-1B status when you filed I-526 petition and as H-1B holder, it is not prohibited to show immigrant intent. As a H-4, a spouse of H-1B, the same argument should be made.

H-1B and H-4 allow dual intent so you should be fine. Just answer yes to the question about an immigrant visa and provide the I-526 receipt number.

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